Tracy v. Brown CA6

Filed 6/10/25 Tracy v. Brown CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MARK CHRISTOPHER TRACY, H052301 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. 23CV423435)

v.

PAUL BROWN,

Defendant and Respondent.

Mark Christopher Tracy brought a defamation action against multiple defendants,1 including Paul Brown. Shortly thereafter, the trial court granted Brown’s motion to declare Tracy a vexatious litigant and enter a prefiling order. (Code Civ. Proc., §§ 391, subd. (b)(4), 391.7, subd. (a).)2 Tracy appeals. Because substantial evidence supports the trial court’s order, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Tracy sued defendants for libel, libel per se, false light, and intentional infliction of emotional distress, alleging defendants published defamatory statements on a Utah public water district website and made additional defamatory statements to others. He

1 The defendants are: Cohne Kinghorn P.C., Simplifi Company, Jeremy Rand Cook, Eric Hawkes, Jennifer Hawkes, Michael Scott Hughes, David Bradford, Kem Crosby Gardner, Walter J. Plumb III, David Bennion, R. Steve Creamer, Paul Brown, and Gary Bowen. Brown is the only party to the current appeal. 2 Unspecified statutory references are to the Code of Civil Procedure.

had previously brought suit against various defendants in Utah federal court based on allegations that a Utah-based law firm, acting on behalf of the Utah public water district and private land developers, fraudulently retired and misappropriated water rights for a private luxury development (FCA lawsuit). The FCA lawsuit was dismissed after multiple appeals. In the complaint underlying this appeal, Tracy alleged defendants shared the defamatory statements to obtain payment from California property owners in furtherance of their fraud and to prevent further appellate review of the FCA lawsuit. Tracy allegedly brought the defamation lawsuit “to restore his reputation and establish Defendants’ legal liability for the fraudulent retirement of senior water rights [and] improper concealment of drinking-water contamination[.]” Brown, specially appearing, moved to declare Tracy a vexatious litigant and requested the court enter a prefiling order.3 He asserted Tracy brought six nearly identical lawsuits in Utah federal and state court and was declared a vexatious litigant under Utah state law. Brown also emphasized Tracy was found to be vexatious in an attorney fee order issued in the FCA lawsuit. Tracy opposed Brown’s motion. The trial court granted Brown’s motion and request for a prefiling order. The court found Tracy was a vexatious litigant because he had previously been declared vexatious by Utah federal and state courts in lawsuits based upon substantially similar facts to those alleged in the defamation suit. Tracy had reiterated the allegations of fraudulent water rights from his previous lawsuits in his complaint, and the current defamation suit required the facts alleged in the previous lawsuits be tried for falsity. In making its determination, the court granted both parties’ requests for judicial notice,